Attorney Alan Dershowitz said Tuesday that President Donald Trump and Congress had multiple options to rein in the judge who tried to block the deportation of over 200 members of the Tren de Aragua (TdA) prison gang.
United States District Judge James Boasberg of the District of Columbia issued an injunction Saturday ordering the Trump administration to turn around two planes carrying members of the gang to El Salvador. This, after Trump invoked the Alien Enemies Act of 1798 to speed up the deportation of the gang members. After providing background information Dershowitz said that the language of the legislation Trump invoked might give Boasberg room to halt deportations, but Trump had multiple options to not only kick TdA members out of the country, since many of them had “no papers whatsoever,” but also to rein in Boasberg.
“What I don’t understand, maybe my listeners can explain it to me, is why the administration invoked this Alien 1798 French exclusion law that requires that there be either an invasion or declared war,” Dershowitz said. “There has been declared war or an invasion by a foreign country. Which one? Venezuela? I don’t know. Venezuela certainly is complicit. It’s a complicated law, and when they invoked the law they gave this judge, the chief judge of the D.C. Circuit, the ability to say, ‘Wait a minute you’ve invoked the law. Let me look at the law. Well, the law says it has to be done pursuant to a foreign country. I don’t see that, so I’m going to issue a status. You came to me with that statute.’”
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“What if they hadn’t come with that statute? What if they had said, ‘Look, these guys are gang members. They’re murderers. They’re rapists. They’re bringing in fentanyl, They don’t have work papers. They don’t have visas. They don’t have green cards. They’re not citizens. We’re just taking them to the border,’” Dershowitz said. “Would the judge say no? I don’t know the answer to that question, but I think it’s a question worth asking and, most importantly, I think of the status of all of these bad guys and, listen, these are bad guys, and President Trump is on to something when he says the American public does not want them living next door. I don’t want them living next door, obviously, and neither do you want them living next door. The question is, what can be done? What can be done legally?”
Trump issued several executive orders to address illegal immigration, including one that designated Mexican drug cartels, TdA and MS-13 as foreign terrorist organizations. TdA is a violent gang whose members have allegedly been involved in the takeover of apartment complexes in Aurora, Colo., kidnapping and murder.
“I think Congress can do more to facilitate the exit of these bad guys, and they should do more, and they can also do more to curtail the jurisdiction of courts. They can pass a statute saying a district court has jurisdiction only to grant an injunction that covers his district, to his circuit. Congress can make a definition, but you can’t have a judge in New York telling people in California what to do and, obviously, to use the example that was used by this administration,” Dershowitz said. “You can’t have a judge in Hawaii telling soldiers in Iraq or Afghanistan that they can’t engage in warfare.”
Dershowitz recalled teaching a class on the legal issues around the Vietnam War, including discussing whether the war was constitutional.
“Many people thought the war was unconstitutional because it hadn’t been declared, and the Constitution says only Congress can declare war, so we had big debates about whether or not people have standing to challenge the war, whether the courts have jurisdiction, whether this is a presidential decision, etcetera, etcetera,” Dershowitz said. “These are hard, complicated issues, and President Trump is pressing them hard, and he has the right to do that. That’s what checks and balances are about.”
Dershowitz also dismissed the notion that the Trump administration’s action precipitated a constitutional crisis and that Trump and Congress could rein in the lower court judges.
“Congress clearly has the authority. It could abolish the district courts all over the country. It could say we don’t have any more district courts,” Dershowitz said. “Nothing in the Constitution about district courts. It just says that you know it can have, there can be other lower courts, but it doesn’t indicate how many there have to be and where the circuits are and how many court of appeals judges [or] district court judges. Those are all issues for Congress, and Congress can have greater input than they now do. So, there is no constitutional crisis, let’s be clear, but Congress can help avoid constitutional clashes by legislating on some of these issues.”
(Featured Image Media Credit: Screenshot/Rumble/The Dershow)
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